IN THE MATTER OF: Durham County
Nos. 99 J 157
LAQUITA DOCKERY 99 J 159
;
DARIUS GATEWOOD 99 J 160 &nbs
p;
TYRIC GATEWOOD
Deputy County Attorney Thomas W. Jordan, Jr. for Durham County
Department of Social Services, petitioner-appellee.
Guardian Ad Litem Attorney Wendy C. Sotolongo for Guardian Ad
Litem
Hosford & Hosford, P.L.L.C., by Sofie W. Hosford, for
respondent-appellant.
CAMPBELL, Judge.
Charles Dockery (“respondent”) appeals an order terminating
his parental rights as the father of Laquita Dockery, Darius
Gatewood and Tyric Gatewood.
Durham County Department of Social Services (“DSS”) initially
filed petitions alleging the three minor children were neglected.
As of the 15 July 1999 hearing on the petitions, service upon
respondent had not been successful. On 8 October 1999, the trial
court adjudicated the three minor children neglected. DSS filed a
supplemental juvenile petition on 9 December 1999. At a 15 January2000 hearing for continued custody, respondent, who was represented
by appointed counsel, accepted service of the summons, petition and
supplemental petition filed by DSS.
On 6 February 2001, DSS filed a separate Motion and Petition
For Termination of Parental Rights (“TPR”) to terminate the
parental rights of respondent as to each of the three minor
children. DSS specifically alleged that respondent had: (1)
neglected the minor children; (2) willfully left the minor children
in foster care for more than twelve months without showing any
reasonable progress under the circumstances within the twelve
months which led to the minor child's removal; (3) failed to pay a
reasonable portion of support for the minor children for a
continuous period of six months after the minor child had been
placed in the custody of DSS; and (4) willfully abandoned the
child. Respondent was served with the three motions to terminate
the parental rights of respondent by mailing a copy of them by
first class mail to his attorney of record. Prior to trial,
respondent moved for the court to order that there be personal
service of DSS's motions to terminate respondent's parental rights.
The trial court denied the motions. On 19 October 2001, the trial
court entered three orders and terminated respondent's parental
rights as to each child based on all four statutory grounds set
forth in N.C. Gen. Stat. §§ 7B-1111(a)(1), (2), (3) and (7) (2001).
DSS also sought to terminate the parental rights of Andrea
Gatewood, the mother of the minor children; however, she signed a
relinquishment for adoption. Respondent appeals from the orderterminating his parental rights.
Respondent first contends that the trial court erred by
denying his motion for personal service. Respondent argues that
service upon his attorney “pursuant to Rule 5 fails to provide
proper notice to [him].” We disagree.
N.C. Gen. Stat. § 7B-1102 provides:
(a) When the district court is exercising
jurisdiction over a juvenile and the
juvenile's parent in an abuse, neglect, or
dependency proceeding, a person or agency
specified in G.S. 7B-1103(a) may file in that
proceeding a motion for termination of the
parent's rights in relation to the juvenile.
(b) A motion pursuant to subsection (a) of
this section and the notice required by G.S.
7B-1106.1 shall be served in accordance with
G.S. 1A-1, Rule 5(b), except:
(1) Service must be in accordance
with G.S. 1A-1, Rule 4, if one of
the following applies:
a. The person or agency to be served
was not served originally with
summons.
b. The person or agency to be
served was served originally by
publication that did not include
notice substantially in conformity
with the notice required by G.S. 7B-
406(b)(4)e.
c. Two years has elapsed since the
date of the original action.
(2) In any case, the court may order that
service of the motion and notice be made
pursuant to G.S. 1A-1, Rule 4.
N.C. Gen. Stat. § 7B-1102(a)-(b) (2001). N.C. Gen Stat. § 1A-1,
Rule 5(b) provides in pertinent part: “With respect to allpleadings subsequent to the original complaint and other papers
required or permitted to be served, service with due return ... may
be made upon either the party or, unless service upon the party
personally is ordered by the court, upon the party's attorney of
record.” N.C. Gen Stat. § 1A-1, Rule 5(b) (2001).
Here, respondent accepted service of the summons, petition and
supplemental petition at a 15 January 2000 hearing. Therefore,
respondent's attorney was properly served with the motion to
terminate respondent's parental rights after respondent accepted
service of the summons and petition in this case pursuant to N.C.
Gen. Stat. § 7B-1102. Respondent cannot show that any of the
exceptions exist to require service under G.S. § 1A-1, Rule 4 nor
can he show that the trial court abused its discretion in failing
to require service of the motion pursuant to Rule 4. More
importantly, respondent cannot show he was prejudiced by having the
motion served upon his attorney rather than upon himself.
Respondent had notice that his parental rights might be terminated
at the 15 January 2000 hearing. The summons he accepted service
for specifically stated that if the court determines that the
allegations of the petition are true, the court “may” [] “order for
Termination of Parental Rights of the parent to the juvenile.”
Accordingly, this assignment of error is overruled.
Respondent also contends there was not clear, cogent, and
convincing evidence to support a termination of his parental rights
under any of the four grounds upon which the trial court based its
decision. We find the evidence sufficient to support the orderterminating parental rights and affirm the decision of the trial
court.
Termination of parental rights proceedings are conducted in
two phases: (1) the adjudication phase, governed by N.C. Gen. Stat.
§ 7B-1109, and (2) the disposition phase, governed by N.C. Gen.
Stat. § 7B-1110. See In re Mitchell, 148 N.C. App. 483, 487, 559
S.E.2d 237, 241 (2002), temporary stay allowed, 355 N.C. 349, 561
S.E.2d 891 (2002), and rev'd, ___ N.C. App. ___, 570 S.E.2d 212
(2002) (citations omitted). During the adjudication phase, the
burden of proof rests on petitioner to prove by clear, cogent, and
convincing evidence that one or more of the statutory grounds set
forth in section 7B-1111 for termination exists. Id.; see N.C.
Gen. Stat. § 7B-1109(e)-(f). The standard of appellate review is
whether the trial court's findings are supported by clear, cogent
and convincing evidence and whether the findings support the
conclusions of law. In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d
838, 840 (2000), appeal dismissed and disc. review denied, 353 N.C.
374, 547 S.E.2d 9 (2001).
If petitioner meets its burden of proof that grounds for
termination exist, the trial court enters the disposition phase and
must consider whether termination is in the best interest of the
child. In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906,
908 (2001). It is within the trial court's discretion to terminate
parental rights upon a finding that it would be in the best
interests of the child. Id. at 613, 543 S.E.2d 910.
Section 7B-1111 provides nine separate grounds upon which anorder terminating parental rights may be based. N.C. Gen. Stat. §
7B-1111 (2001). A court's finding of one of the statutory grounds
for termination, if supported by competent evidence, will support
an order terminating parental rights. In re Nolen, 117 N.C. App.
693, 700, 453 S.E.2d 220, 225 (1995). The trial court's decision
to terminate parental rights is reviewed on an abuse of discretion
standard. In re Allred, 122 N.C. App. 561, 569, 471 S.E.2d 84, 88
(1996).
A trial court may terminate parental rights under the 7B-
1111(a)(2) upon a finding that:
The parent has willfully left the juvenile in
foster care or placement outside the home for
more than 12 months without showing . . . that
reasonable progress under the circumstances
has been made in correcting those conditions
which led to the removal of the juvenile.
N.C. Gen. Stat. § 7B-1111(a)(2) (2001). Willfulness under section
7B-1111(a)(2) is something less than willful abandonment. Nolen
at 699, 453 S.E.2d at 224. “A finding of willfulness is not
precluded even if the respondent has made some efforts to regain
custody of the children.” Id. The trial court must also find that
the parent has failed to make reasonable progress in correcting the
conditions which led to the removal of the child. N.C. Gen. Stat.
§ 7B-1111(a)(2). In Nolen, this Court held that sporadic efforts
by the parent to improve her situation constituted willful failure
to correct conditions that led to the removal. Nolen at 699-700,
453 S.E.2d at 224-25. In In re Oghenekevebe, 123 N.C. App. 434,
437, 473 S.E.2d 393, 397 (1996), this Court found the respondent
willfully left her child in foster care where she failed to showany progress in her therapy until her parental rights were in
jeopardy.
In support of its conclusion that respondent's parental rights
should be terminated pursuant to N.C. Gen. Stat. § 7B-1111(a)(2) as
to Darius Gatewood, the trial court entered the following pertinent
findings of fact:
7. The child was placed in foster care
on December 9, 1999 pursuant to a supplemental
petition. The father was served with the
summons and petitions on January 15, 2000.
The case was reviewed on February 23, 2000.
Legal custody was placed in Durham DSS. Due
to his requesting paternity testing as to the
child, recommendations as to Charles Dockery
were deferred.
. . .
9. The case was reviewed on December 6,
2000. Paternity was established. The father
had requested visits; however, the child's
therapist was concerned over introducing the
father into the life of the child. The father
was allowed visits with the concurrence of the
child's therapist. He had some visits. The
father was ordered to become involved with the
child's therapy if recommended. Legal custody
was continued in Durham DSS. The father was
allowed visits. The father was ordered to pay
support. The father was directed to establish
a home in order to maintain a stable residence
for the child.
10. The case was reviewed on March 16, 2001.
At that time, the father had not contacted
Darius's therapist. The father was not
involved with Darius' therapy. He was not
paying support for the child. Legal custody
continued with Durham DSS. Visitation was
allowed but conditioned on compliance with the
prior court orders. Prior orders were
continued in effect. The permanent plan of
termination of parental rights and adoption
was recognized by the court.
. . .
12. Durham DSS discussed with Charles Dockery
the steps he needed to take for the child to
be placed in his care. Charles Dockery
initially showed interest in being involved
with the child; however, he has failed to
follow through with being involved with his
mental health treatment. He has not visited
the child since January 19, 2001. He has not
been in contact with the Durham DSS social
worker since January 5, 2001.
As to Tyric Gatewood, the trial court entered the following
pertinent findings of fact pursuant to N.C. Gen. Stat. § 7B-
1111(a)(2) :
4. The child has been in the custody of the
Durham County Department of Social Services
(hereinafter Durham DSS) since December 9,
1999. The child has remained continuously in
foster care up to the hearing on this date.
. . .
6. The child was placed in foster care on
December 9, 1999 pursuant to a supplemental
petition. The father was served with the
summons and petitions on February 8, 2000.
The case was reviewed on February 23, 2000.
Legal custody was placed in Durham DSS. Due
to his requesting paternity testing as to the
child, recommendations as to Charles Dockery
were deferred.
. . .
8. The case was reviewed on December 6, 2000.
Paternity was established. The father had
requested visits; however, the child's
therapist was concerned over introducing the
father into the life of the child. The father
was allowed visits with the concurrence of the
child's therapist. He had some visits. The
father was ordered to become involved with the
child's therapy if recommended. Legal custody
was continued in Durham DSS. The father was
allowed visits. The father was ordered to pay
support. The father was directed to establisha home in order to maintain a stable residence
for the child.
9. The case was reviewed on March 16, 2001.
At that time, the father had not contacted
[Tyric's] therapist. The father was not
involved with [Tyric's] therapy. He was not
paying support for the child. Legal custody
continued with Durham DSS. Visitation was
allowed but conditioned on compliance with the
prior court orders. Prior orders were
continued in effect. The permanent plan of
termination of parental rights and adoption
was recognized by the court.
11. Durham DSS discussed with [Charles
Dockery] the steps he needed to take for the
child to be placed in his care. Charles
Dockery initially showed interest in being
involved with the child; however, he has
failed to follow through with being involved
with his mental health treatment. He has not
visited the child since January 19, 2001. He
has not been in contact with the Durham DSS
social worker since January 5, 2001. He has
not taken a parenting program for children
with developmental delays.
The trial court entered the following pertinent findings of fact
pursuant to N.C. Gen. Stat. § 7B-1111(a)(2) as to Laquita Dockery:
7. The child was placed in foster care on
December 9, 1999 pursuant to a supplemental
petition. The father was served with the
summons and petitions on January 15, 2000.
The summons and petition included termination
of parental rights as a possible future
disposition in the case. The case was
reviewed on February 23, 2000. Legal custody
was placed in Durham DSS. Laquita was ordered
to have mental health counseling services.
Due to his requesting paternity testing on
siblings, recommendations as to Charles
Dockery were deferred.
8. The case was reviewed on May 17, 2000.
The father initiated visits with Laquita, but
there was a substantial period during which he
had no visits with his daughter. Laquita
received mental health treatment. Herproblems in school decreased. Legal custody
was continued in Durham DSS. The father was
allowed visitation.
9. The case was reviewed on December 6, 2000.
The father was inconsistent in his visitation.
He missed some visits without calling to
explain why he did not come for the visits.
Legal custody was continued in Durham DSS.
The father was allowed visits. The father was
ordered to become involved in Laquita's
therapy. The father was ordered to pay
support. The father was directed to establish
a home in order to maintain a stable residence
for the child.
10. The case was reviewed on March 16, 2001.
The father had not contacted Laquita's
therapist. He had not participated in
Laquita's therapy. Legal custody continued
with Durham DSS. The father was ordered to
pay child support. Visitation with the child
was allowed but conditioned upon his
compliance with the prior court order. Prior
orders were continued in effect. The
permanent plan of termination of parental
rights and adoption was recognized by the
court.
. . .
12. Durham DSS discussed with [Charles
Dockery] the steps he needed to take for the
child to be placed in his care. Charles
Dockery initially showed interest in being
involved with the child and did attend a
parenting program; however, he has failed to
follow through with being involved with the
mental health treatment. He has not obtained
a mental health evaluation. He has not
visited the child since January 19, 2001. He
has not been in contact with the Durham DSS
since January 5, 2001.
The court further found that each child has been in the custody of
the Durham County Department of Social Services since December 9,
1999, and has remained continuously in foster care up to the
hearing. Respondent did not except to any of these findings, and they
are presumed to be correct and supported by the evidence. In re
Moore, 306 N.C. 394, 293 S.E.2d 127 (1982), appeal dismissed, 459
U.S. 1139, 74 L. Ed. 2d 987 (1983). Nevertheless, we have examined
the record and determined that these findings are based upon orders
entered in the case, the testimony of a DSS social worker who
worked with the three minor children. Accordingly, we find the
trial court's findings are supported by clear, cogent and
convincing evidence. Furthermore, we hold that these findings
support the court's conclusion that Charles Dockery was subject to
having his parental rights terminated pursuant to N.C. Gen. Stat.
§ 7B-1111(a)(2). See, e.g., In re Nolen, 117 N.C. App. 693, 453
S.E.2d 220; In re Oghenekevebe, 123 N.C. App. 434, 473 S.E.2d 393.
Respondent fails to show, nor do we find, that the trial court
abused its discretion in terminating respondent's parental rights.
See Dept. of Social Services v. Roberts, 22 N.C. App. 658, 207
S.E.2d 368 (1974).
Because we have determined that one of the grounds set forth
in N.C. Gen. Stat. § 7B-1111 supports the trial court's order, we
need not address respondent's challenge to the trial court's
termination on other grounds. See In re Allred at 568, 471 S.E.2d
at 88. Accordingly, the trial court's order terminating
respondent's parental rights is affirmed.
Affirmed.
Judges WYNN and McGEE concur.
Report per Rule 30(e).
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